RUTHFULLY YOURS

Emphasizing that the Supreme Court’s authority hinges on the public’s trust in the court, Justice Stephen Breyer used a speech on Tuesday at Harvard Law School to argue against efforts to expand the number of seats on the Supreme Court. The 82-year-old Breyer contended that public trust in the court rests in the public’s perception that “the court is guided by legal principle, not politics” and would therefore be eroded if the court’s structure were changed in response to concerns about the influence of politics on the Supreme Court.

The text of Breyer’s prepared remarks, which he delivered as a nearly two-hour speech, included references to the Roman philosopher Cicero, Shakepeare’s Henry IV, The Plague by Albert Camus and Alexis de Toqueville, the French aristocrat who chronicled American life in the early 19th century. (Breyer, who has been known to give speeches in French, did not indicate whether he read the latter two sources in English or in their original French.) The focus of Breyer’s speech, sometimes referred to as “court packing,” has been a popular topic among some Democrats, particularly since the September 2020 death of Justice Ruth Bader Ginsburg, when then-Senate Majority Leader Mitch McConnell moved quickly to confirm Justice Amy Coney Barrett after having refused to hold a hearing on Merrick Garland, President Barack Obama’s nominee to replace Justice Antonin Scalia, in March 2016. As a candidate, President Joe Biden declined to support an expansion of the court, instead promising to establish a commission to examine possible reforms to the Supreme Court more broadly.

Breyer’s opposition to expanding the court rests in his belief that the Supreme Court’s power depends on “the public’s willingness to respect its decisions,” even when it does not agree with those rulings. Breyer cited two factors that, he suggested, “provide cause for concern” about the public’s acceptance of the court’s decisions. First, he noted, there has generally been a “growing public suspicion and distrust of all government institutions.” Second, he continued, there has been what Breyer characterized as a perception – which he blamed on the tendency of the press and politicians to label justices as “liberal” or “conservative” – that decisions are driven by politics, rather than legal principles. Adding seats to the court to address a belief that the court has become overly politicized, Breyer concluded, “can only feed that perception, further eroding that trust.”

In the video released by Harvard, Breyer appears chipper and energetic. He did not discuss one of the other popular topics among liberals: calls for him to step down from the court, to allow Biden to nominate his successor.

This post was originally published at Howe on the Court.